If you are an employer who has previously filed an Application for Nonimmigrant Worker, on behalf of a foreign national you wished to employ in H-1, L-1 or O-1A status, you have probably struggled with how to respond to the dreaded Form I-129 Export Control Compliance section of that form.
Part 6 of Form I-129 is a section requiring the petitioning employer to review the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and make a certification as to “whether the foreign worker will have access in the workplace to technology and technical data for which an export license is required.”
If the answer is “yes,” the petitioner must agree to prevent the foreign national from having access to that technology and technical information, until an export license or other authorization is, in fact, obtained.
Following are some typical questions that this section raises:

What are the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR)?

EAR and ITAR are two important federal export control laws.  They prohibit the unlicensed transfer of U.S. goods, services, and technologies to foreign nationals. The goal of these laws is to prevent the disclosure of sensitive information to a foreign national, usually because the information is subject to trade restrictions or has proprietary, military, or economic applications.

What kind of goods, services, and technologies are covered under these laws?

ITAR:

  • Covers military items or defense articles;
  • Regulates goods and technology designed to kill or defend against death in a military setting;
  • Includes space related technology because of application to missile technology;
  • Includes technical data related to defense articles and services; and
  • Does not address commercial or research objectives – strict regulatory licensing.

EAR:

  • Regulates items designed for commercial purpose which could have military applications such as computers or software;
  • Covers both the goods and the technology;
  • Licensing addresses competing interests and foreign availability; and
  • Combines commercial and research objectives with national security.

What kinds of companies and institutions use these deemed exports?

Typical organizations using deemed export licenses include universities, high technology research and development institutions, and bio-chemical firms.  Firms in the medical and computer sectors are often subject to these licenses as well.
It should be emphasized that although the deemed export rule may be triggered, this does not necessarily mean that a license is required. For example, fundamental research is defined as “basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community” and is exempt from EAR licensing requirements. Research conducted using publically available information is also exempt from any license requirements.

I’m an employer wants to hire a foreign national.  How do these laws affect me?

Before hiring a foreign national, a petitioner should determine whether they have controlled technology or source code, and then verify whether a license or export authorization is required for sharing any such data with non-US employees.  The Department of Homeland Security (DHS) requires employers sponsoring H-1, L-1, or O-1A nonimmigrant workers to certify their compliance with ECR “deemed export” rules regarding the transfer or disclosure of technology or technical data to a foreign national working in the U.S.
By signing Form I-129, Petition for a Nonimmigrant Worker, the petitioning company is making a legal attestation that the organization has done its due diligence in determining whether an Export License is needed for the employee.

What are the consequences for violating these laws?

If the company is found to have violated the deemed export laws, the organization is responsible for the consequences, which may include not only millions of dollars in fines, but even criminal prosecution for threats to U.S. national security and/or economic espionage.

So what’s the bottom line?

Employers need to understand the full scope of technology and other items their foreign national employees have access to and use.  Petitioners should manage compliance with Part 6 of Form I-129 within their company’s overall efforts for trade controls compliance.
If you employ foreign nationals in H-1B, L-1 or O-1A status, you must fully comply with the Form I-129 Export Control Compliance section.  To discuss this or any other employment based immigration questions, contact our office to schedule a consultation with one of our Immigration Attorneys.